Thursday, March 14, 2019

If in doubt, complain

Today Stuff launched Redacted, a series of articles on the Official Information Act and how it is abused, to raise awareness about the government's public consultation. Today's big piece is about how public servants circumvent and manipulate the Act to keep information secret and undermine accountability. Its an appalling read, but probably nothing new to regular OIA users familiar with these tactics. So what can we do about it?

Simple: complain to the Ombudsman. Public servants use these tactics because they get away with it, and they get away with it because no-one pulls them up on it. They also use these tactics because it is less work than obeying the law, and again, they get away with it because no-one makes it more work. If we want them to obey the law, then we need to reverse that calculation: make it more work to refuse, and make it likely that bad behaviour will be detected and called out. And the way to do that is by complaining.

Public servants hate Ombudsman's complaints. They are a shit-ton of work, and unlike requests from us peasants, they can't just ignore them, refuse them to meet deadlines, or give bullshit responses. Making complaints is a direct way of incentivising the public servants handling OIA requests to do their job properly and obey the law. At the minimum, they make it clear that someone is watching, and that bad behaviour may be caught.

So, if there is anything dodgy about a response, complain. If material has been withheld as "confidential" or "free and frank opinion" (the most frequently-abused withholding clauses), complain. If the public interest in release has not been considered, complain. If they are late, complain. If they dick you around in any way, complain. Anything less lets the fuckers get away with it.

As for what you should put in your complaint, simply say that you are not satisfied with the response and ask that it be reconsidered. If there's a clear violation of the law - lateness, an illegal second extension, failure to consider the public interest, or hyper-literalism and perverse interpretation of the request (a failure in the duty to assist), point that out. I find it useful to ground my complaints in the Ombudsman's guidelines, providing reasons why any cited withholding grounds do not apply, and this is usually an effective tactic. As the Stuff article points out, most public servants handling requests are poorly trained and unfamiliar with the guidelines, so frequently make mistakes.

The statistics are on your side. Complaints get remedies. Even when there's no formal finding, the fact that the Ombudsman is asking questions usually forces an agency to reconsider a response, and maybe you'll get something. And again: it incentivises public servants to make good decisions and lets them know they're being watched. Which means the public benefits as well.

Public servants will probably hate me posting this. Fuck them. If they don't want complaints, then they need to make obviously sound decisions. If they don't, they have no-one to blame but themselves if someone asks for it to be checked.